Joye v. Yon, 3335.

Decision Date23 April 2001
Docket NumberNo. 3335.,3335.
Citation547 S.E.2d 888,345 S.C. 264
PartiesLaurie M. JOYE, Respondent, v. Theron R. YON, Appellant.
CourtSouth Carolina Court of Appeals

Thomas E. Elliott, Jr., of the Elliott Law Firm, of Columbia, for appellant.

William Y. Rast, Jr., of West Columbia, for respondent.

HEARN, Chief Judge:

This is an appeal from an order reinstating alimony following the annulment of the supported spouse's remarriage. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Laurie Joye and Theron Yon were married on June 20, 1970. They were divorced by order dated October 31, 1996. Pursuant to that divorce decree, Yon was required to pay $750 per month in periodic alimony, plus court costs, through the Lexington County Family Court.1

On March 23, 1999, Joye participated in a marriage ceremony with Donald Vance. Yon stopped paying alimony March 25, 1999. However, Joye soon learned that Vance had never obtained a divorce from his prior wife. On May 20, 1999, Joye brought an annulment action against Vance. By order dated September 24, 1999, the family court judge granted her an annulment.2 Yon was not a party to the annulment action.

On two occasions following the filing of the annulment action, Yon was ruled before the family court to show cause why he should not be held in contempt for nonpayment of alimony. On both occasions, the family court judge held the issue of Yon's alimony obligation in abeyance pending the outcome of the annulment action.

Joye filed the contempt complaint from which this appeal arises on December 9, 1999, seeking to hold Yon in contempt for ceasing his alimony payments. In response, Yon argued his alimony obligation should be terminated because of Joye's "remarriage" pursuant to S.C.Code Ann. § 20-3-130(B)(1) (Supp.2000).3

By order dated February 9, 2000, the family court judge found Yon was "not in Civil Contempt of this Court, and that his refusal to pay alimony was not a willful violation." In this same order, the court reinstated Yon's alimony payments, finding "that no marriage ever existed between the ex-wife [and Vance] on March 23, 1999." Yon was ordered to pay all support arrearages and to continue paying monthly alimony beginning on February 1, 2000. Yon appeals the reinstatement of his alimony obligation.

DISCUSSION
I. Survey of Law

No South Carolina case has ever addressed whether the annulment of a subsequent marriage restores the alimony obligation owed by the first spouse. Other jurisdictions have given varying treatment to this issue.

Usually an award of alimony terminates upon the supported spouse's remarriage as contemplated in a divorce decree or as specifically addressed by statute.4 When a remarriage is annulled, the courts must determine whether a prior alimony obligation should be reinstated. 24A Am.Jur.2d Divorce & Separation § 791 (1998). Some jurisdictions reinstate alimony based on whether the second marriage was void ab initio or only voidable. See generally Ferdinand S. Tinio, Annotation, Annulment of Later Marriage as Reviving Prior Husband's Obligations Under Alimony Decree or Separation Agreement, 45 A.L.R.3d 1033 (2000). Other courts have disregarded the distinction between void and voidable marriages. Id. at 1036. Generally, courts apply one of three broad theories: (1) the void/voidable approach; (2) the automatic termination approach; and (3) the case by case approach. See Carla M. Venhoff, Divorce or Death, Remarriage & Annulment: The Path Toward Reinstating Financial Obligations from a Previous Marriage, 37 Brandeis L.J. 435 (1998).

A majority of courts reinstate the alimony obligation upon annulment of the subsequent marriage where the attempted remarriage was void ab initio but deny reinstatement if the attempted remarriage was merely voidable.5 "This result has been justified on the grounds that an annulled marriage, being void from its inception, cannot be given any effect as a remarriage of the dependent spouse." 24A Am. Jur.2d Divorce and Separation § 791 (1998). Under this approach, a void marriage is void ab initio and by definition, is no marriage at all. See Reese v. Reese, 192 So.2d 1, 2 (Fla.1966)

; Johnston v. Johnston, 3 Kan.App.2d 208, 592 P.2d 132, 135 (1979); Watts v. Watts, 250 Neb. 38, 547 N.W.2d 466, 470 (1996); Brewer v. Miller, 673 S.W.2d 530, 532 (Tenn.Ct. App.1984). "[E]ven if a marriage ceremony takes place, the marriage may nevertheless be declared void ab initio if the parties could not validly enter into the status of matrimony." Broadus v. Broadus, 361 So.2d 582, 585 (Ala.Civ.App.1978); Johnson County Nat'l Bank & Trust Co. v. Bach, 189 Kan. 291, 369 P.2d 231, 237 (1962). Thus, the supported spouse must legally enter into another marriage before she may be deemed remarried. See Watts, 547 N.W.2d at 470; Broadus, 361 So.2d at 585. The mere ceremony of marriage does not legitimize a void marriage.

By contrast, when a supported spouse enters into a subsequent voidable marriage, the supported spouse's right to alimony from the prior spouse is extinguished. McConkey v. McConkey, 216 Va. 106, 215 S.E.2d 640, 641 (1975). The rationale is that the supported spouse has voluntarily accepted the risks of a subsequent marriage and the former spouse should not be held accountable for any "gullibility, mistake or misfortune." Id.

A significant minority of courts reject the void/voidable distinction and refuse to reinstate alimony under any circumstances. Beebe v. Beebe, 227 Ga. 248, 179 S.E.2d 758, 760 (1971) ("[T]he distinction between so-called void and voidable ceremonial marriages is more imaginary than real, and the relationship, if continued after the disability is removed, becomes valid in either case."); See generally Love, supra, at 289; Tinio, supra, at 1036. This approach affords the payor spouse some certainty concerning support obligations. See In re Marriage of Kolb, 99 Ill.App.3d 895, 55 Ill.Dec. 128, 425 N.E.2d 1301, 1306 (1981)

.6

The reasoning is that regardless whether the subsequent marriage is void or voidable, both the supported spouse and the supporting spouse expect the supported spouse's remarriage to be valid, and the supporting spouse should be able to rely on that expectation. Richards v. Richards, 139 N.J.Super. 207, 353 A.2d 141, 144 (Ch.1976); Flaxman, 273 A.2d at 569. The supporting spouse may properly assume that his or her financial obligations to the supported spouse have ceased and reorder his or her own affairs accordingly. Flaxman, 273 A.2d at 569; Chavez v. Chavez, 82 N.M. 624, 485 P.2d 735, 737 (1971); Richards, 353 A.2d at 144 ("Certainly, when a former wife remarries, the divorced husband does not concern himself with any legal distinctions between void and voidable. She has married. He is free.").

The supported spouse has been held to have waived any right to collect alimony from the prior spouse. Keeney v. Keeney, 211 La. 585, 30 So.2d 549, 551 (1947); see Hodges v. Hodges, 118 Ariz. 572, 578 P.2d 1001, 1005 (Ct.App.1978)

("Upon remarriage, the wife obtains a new source of support."); Surabian v. Surabian, 362 Mass. 342, 285 N.E.2d 909, 912 (1972) (Wife "relinquished her right of support under the separation agreement [with her first husband]."). Under principles of fairness, even though both former spouses may be innocent, the more active of the two should bear the loss from the misconduct of a stranger. Glass, 546 S.W.2d at 741; G. v. G., 387 A.2d 200, 203 (Del.Fam.Ct.1977).

In these jurisdictions, remarriage is accomplished by the ceremony of marriage, regardless of the resulting status of the union. See In re Marriage of Harris, 203 Ill.App.3d 241, 148 Ill.Dec. 541, 560 N.E.2d 1138, 1140 (1990)

(defining remarriage as the ceremony of marriage as it is found in divorce settlements and under statutory law); Kolb,

55 Ill.Dec. 128,

425 N.E.2d at 1305; Shank, 691 P.2d at 873 (defining remarriage as the solemnization or ceremony of remarriage, without regard to whether the remarriage is later determined to be void or voidable); Glass, 546 S.W.2d at 742; G., 387 A.2d at 204 (stating that performing a marriage ceremony is sufficient even if the marriage is technically invalid). Thus, when a marriage ceremony occurs, it extinguishes the first husband's alimony obligation. Fry v. Fry, 5 Cal.App.3d 169, 85 Cal.Rptr. 126, 127-28 (1970).

Other courts have criticized both the void/voidable approach and the automatic termination approach as inflexible and instead apply a case by case analysis. See generally Love, supra, at 289; In re Marriage of Cargill, 843 P.2d 1335, 1341 (Colo.1993); Peters v. Peters, 214 N.W.2d 151, 157 (Iowa 1974). Under this fact-specific method, a court applies its general equitable powers to discern the intent of the parties. See Ferguson v. Ferguson, 564 P.2d 1380, 1383 (Utah 1977)

; In re Marriage of Williams, 208 Mont. 252, 677 P.2d 585, 587 (1984); Peters, 214 N.W.2d at 157. These jurisdictions have held that although participation in the marriage ceremony is evidence of an election to forgo support, courts should examine each case to determine if there are extraordinary circumstances to warrant the continuation of alimony. Cargill, 843 P.2d at 1342; Keller v. O'Brien, 425 Mass. 774, 683 N.E.2d 1026, 1028 (1997); Boren v. Windham, 425 So.2d 1353, 1355-56 (Miss.1983).

Under this analysis, a marriage ceremony will initially terminate a former spouse's alimony obligation. Boren, 425 So.2d at 1355. However, the alimony obligation may be revived depending on the facts of the case. Id. An annulment of the subsequent marriage does not automatically restore alimony because alimony should only be reinstated where the interests of justice are served thereby. See, e.g. Williams, 677 P.2d at 587; Peters, 214 N.W.2d at 156 (holding that first husband had no knowledge of his ex-wife's second marriage until four days before the second marriage was annulled, so he was not inconvenienced and alimony was reinstated); ...

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2 cases
  • Joye v. Yon
    • United States
    • South Carolina Supreme Court
    • August 25, 2003
    ...its inception and is perceived as never having existed. Consequently, husband's alimony obligation never ceased. Joye v. Yon, 345 S.C. 264, 547 S.E.2d 888 (Ct.App.2001). This Court granted a Petition for Certiorari to review the Court of Appeals' decision to uphold the trial judge's finding......
  • State v. Zulfer
    • United States
    • South Carolina Court of Appeals
    • April 23, 2001

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